Citation Nr: 0609799
Decision Date: 04/04/06 Archive Date: 04/13/06
DOCKET NO. 01-01 986 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to service connection for a bilateral eye
disability, to include glaucoma and cataracts.
2. Entitlement to service connection for a left inguinal
hernia, on a direct and secondary basis.
3. Entitlement to service connection for a left testicle
disorder, to include hydrocele and orchiectomy, on a direct
and secondary basis.
4. Entitlement to service connection for a prostate
disorder, to include benign prostatic hypertrophy, on a
direct and secondary basis.
5. Entitlement to service connection for a cardiovascular
disability, to include arteriosclerosis, on a direct and
secondary basis.
6. Entitlement to an effective date earlier than March 4,
2004, for the grant of service connection for residuals of
trenchfoot with bilateral peripheral neuropathy in the lower
extremities.
7. Entitlement to an effective date earlier than March 4,
2004, for the grant of service connection for cold injuries
to the right and left hands with residuals of neuropathy.
REPRESENTATION
The veteran represented by: Berks County Department of
Veterans Affairs AGO
ATTORNEY FOR THE BOARD
S. A. Mishalanie, Associate Counsel
INTRODUCTION
The veteran served on active duty in the military from
November 1942 to October 1945. He was held as a prisoner of
war (POW) from January 1944 to April 1945. He was also
awarded a Purple Heart and the Combat Infantryman Badge
during active service.
This appeal to the Board of Veterans' Appeals (Board) arose
from December 1997, September 2002, and October 2004
decisions of Regional Offices (ROs) of the Department of
Veterans Affairs (VA).
In July 2003, the Board remanded the veteran's claims for
service connection for eye, hernia, testicle, prostate, and
cardiovascular disabilities to the RO for additional
development and readjudication. In October 2004, the RO
issued a supplemental statement of the case (SSOC) continuing
to deny the claims, and returned the case to the Board for
further appellate review.
Also, in an October 2004 rating decision, the RO granted the
veteran's claims for service connection for trenchfoot and
cold injuries, and assigned an effective date of March 4,
2004, for both claims (the date of a telephone conversation
between the RO and the veteran - see VA Form 119). He
appealed seeking earlier effective dates. Because of a
recent change in the law, these issues must be remanded to
the RO via the Appeals Management Center (AMC) in Washington,
DC. VA will notify the veteran if further action is required
on his part.
FINDINGS OF FACT
1. The veteran was held as a POW from January 1944 to April
1945.
2. In December 1943, the veteran sustained shell fragment
wounds to the abdomen, groin, and thighs, and he has been
service-connected for the residuals of these injuries since
he was discharged in 1945.
3. There is no medical evidence suggesting the veteran's eye
conditions, including glaucoma and cataracts,
either originated in service or are otherwise causally
related to his military service.
4. There is no medical evidence suggesting the veteran's
left inguinal hernia, left testicle disorder, or prostate
disorder either originated in service or is otherwise
causally related to his military service, including due to
his service-connected residuals of shell fragment wounds.
5. The medical evidence of record indicates the veteran has
hypertension, which is service-connected, and hyperlipidemia,
which is not compensable for VA purposes, but no other
cardiovascular disabilities, including arteriosclerosis.
CONCLUSIONS OF LAW
1. The veteran's eye conditions were not incurred or
aggravated during service.
38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§
3.1, 3.6, 3.102, 3.159, 3.303 (2005).
2. The veteran's left inguinal hernia, left testicle
disorder, and prostate disorder were not incurred or
aggravated during service, including proximately due to or
the result of his shell fragment wounds. 38 U.S.C.A. §§
1110, 5103A, 5107; 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159,
3.303, 3.310(a).
3. The veteran does not currently have a compensable
cardiovascular disability (other than hypertension, which is
already service-connected) that was incurred in service,
aggravated by service, or can be presumed to have been
incurred in service. 38 U.S.C.A. §§ 1110, 1112, 5103A, 5107;
38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303, 3.307, 3.309.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act (VCAA)
The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106,
5107, 5126, was signed into law on November 9, 2000.
Implementing regulations were created, codified at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326.
VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38
C.F.R. § 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim. Pelegrini v. Principi, 18
Vet. App. 112, 120-121 (2004) (Pelegrini II). This new
"fourth element" of the notice requirement comes from the
language of 38 C.F.R. § 3.159(b)(1).
In this case, the RO provided the veteran with VCAA notice
letters in April 2001 and March 2004. The April 2001 letter
mistakenly provided him with notice of the evidence needed to
reopen previously denied claims. The issues on appeal,
however, are original claims for service connection and have
not been previously denied. Nonetheless, the March 2004 VCAA
notice letter correctly provided him with notice of the
evidence needed to support his original claims that was not
on record at the time of the letter, the evidence VA would
assist him in obtaining, and the evidence it was expected
that he would provide. The March 2004 letter satisfied the
first three notice requirements outlined in 38 C.F.R. §
3.159(b)(1) and Pelegrini II, but did not include the
specific language of the "fourth element" mentioned above.
In a precedent opinion, VA's General Counsel addressed the
issue of the "fourth element" of the VCAA notice as
outlined by the U.S. Court of Appeals for Veterans Claims
(Court) in Pelegrini v. Principi, 17 Vet. App. 412 (2004)
(Pelegrini I). See VAOPGCPREC 1-04 (Feb. 24, 2004). The
"fourth element" language in Pelegrini I is substantially
identical to that of Pelegrini II, as mentioned, requiring VA
under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) to
request the claimant provide any evidence in his or her
possession that pertains to the claims. Id. The General
Counsel's opinion held that this language was obiter dictum
and not binding on VA. See VAOPGCPREC 1-04 (Feb. 24, 2004);
see also Pelegrini II, 18 Vet. App. at 130 (Ivers, J.,
dissenting). In addition, the General Counsel's opinion
stated VA may make a determination as to whether the absence
of such a generalized request, as outlined under §
3.159(b)(1), is harmful or prejudicial to the claimant. For
example, where the claimant is asked to provide any evidence
that would substantiate his or her claim, a more generalized
request in many cases would be superfluous. Id. The Board
is bound by the precedent opinions of VA's General Counsel,
as the chief legal officer for the Department.
38 U.S.C.A. § 7104(c).
Here, although the VCAA letters did not contain the precise
language specified in
38 C.F.R. § 3.159(b)(1), the Board finds that the veteran was
otherwise fully notified of the need to give VA any evidence
pertaining to his claims. The March 2004 letter requested
that he provide or identify any evidence supporting his
claims and specifically outlined the necessary evidence. So
a more generalized request with the precise language outlined
in § 3.159(b)(1) would be redundant. The absence of such a
request is unlikely to prejudice him, and thus, the Board
finds this to be harmless error. VAOPGCPREC 1-04
(Feb. 24, 2004); see also Mayfield v. Nicholson, 19 Vet. App.
103, 128 (2005) (Requesting additional evidence supportive of
the claim rather than evidence that pertains does not have
the natural effect of producing prejudice. The burden is on
the claimant in such a situation to show that prejudice
actually exists).
During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) also apply to all five
elements of a service connection claim. Those five elements
include: 1) veteran status; 2) existence of a disability; (3)
a connection between the veteran's service and the
disability; 4) degree of disability; and 5) effective date of
the disability. Dingess/Hartman v. Nicholson, Nos. 01-1917,
02-1506, 2006 WL 519755, at *8 (Vet. App. March 6, 2003).
The Court held that the VCAA notice must include notice that
a disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Id.
In this case, the VCAA notice to the veteran did not cite the
law and regulations governing nor describe the type of
evidence necessary to establish a disability ratings or
effective dates for the disabilities on appeal. Despite the
inadequate notice, the Board finds no prejudice to the
veteran in proceeding with the issuance of a final decision
with regard to his claims for service connection for eye,
hernia, testicle, prostate, and cardiovascular disabilities.
See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (when the
Board considers a question not addressed by the RO, the Board
must consider whether the veteran will be prejudiced
thereby). Because the Board concludes below that the
preponderance of the evidence is against these claims for
service connection, any questions as to the appropriate
disability ratings or effective dates to be assigned are
rendered moot.
With regard to the timing of the VCAA notice, the VCAA was
enacted after the RO's initial adjudication of the veteran's
claims in December 1997. As such, the RO could not have
complied with the requirement that the VCAA notice precede
the initial RO adjudication. This action would have been
impossible to accomplish because the VCAA did not exist when
the RO initially adjudicated the claims. See 38 U.S.C.A. §
5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini II, 18 Vet. App.
at 120. But in Pelegrini II, the Court clarified that in
cases, as here, where the VCAA notice was not issued until
after the initial adjudication in question, VA does not have
to vitiate the initial decision and start the whole
adjudicatory process anew. Rather, VA need only ensure the
veteran receives or since has received content-complying VCAA
notice such that he is not prejudiced. See, Mayfield, 19
Vet. App. at 114 (An error, whether procedural or
substantive, is prejudicial "when the error affects a
substantial right so as to injure an interest that the
statutory or regulatory provision involved was designed to
protect such that the error affects 'the essential fairness
of the [adjudication].'" (quoting McDonough Power Equip.,
Inc. v. Greenwood, 464 U.S. 548, 553 (1984). Failure to
provide notice before the first adverse decision by the AOJ
would not have the natural effect of producing prejudice, and
therefore, prejudice must be pled as to this deficiency.))
Here, the RO readjudicated the veteran's claims in a
September 2002 rating decision in order to consider the
changes in the law due to the enactment of the VCAA. But, as
mentioned previously, the April 2001 VCAA notice was
deficient. The defective notice was corrected by the March
2004 VCAA letter, which provided him with ample opportunity
to respond before the RO's October 2004 SSOC, wherein the RO
readjudicated his claims based on the additional evidence
that had been obtained since the initial rating decision in
question, statement of the case (SOC), and any prior SSOCs.
He did not respond specifically to the March 2004 letter, but
he previously provided information relating to his various
health care providers, and these records were obtained. He
has not otherwise indicated he has any additional relevant
evidence to submit or which needs to be obtained. So under
these circumstances, the Board finds he was afforded "a
meaningful opportunity to participate effectively in the
processing of his claim[s] by VA," and thus, "essentially
cured the error in the timing of notice". See Mayfield, 19
Vet. App. at 128 (holding that section 5103(a) notice
provided after initial RO decision can "essentially cure the
error in the timing of notice" so as to "afford a claimant
a meaningful opportunity to participate effectively in the
processing of ... [his claims] by VA") (citing Pelegrini II,
18 Vet. App. at 122-24).
In developing his claims, the RO obtained the veteran's
service medical records (SMRs), and his VA outpatient
treatment (VAOPT) records. Private medical records were also
obtained from his eye doctors, Reading Hospital, Dr.
Kovalsky, Dr. Bartos, and Dr. Van den Bosch. In addition, VA
examinations were scheduled in October 1997, and September
2004. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).
In sum, the record reflects that the facts pertinent to the
claims for service connection for eye, hernia, testicle,
prostate and cardiovascular disabilities have been developed
to the extent possible and that no further development is
required to comply with the provisions of the VCAA or the
implementing regulations. That is to say, "the record has
been fully developed, " and it is "difficult to discern
what additional guidance VA could [provide] to the appellant
regarding what further evidence he should submit to
substantiate his claim[s]." Conway v. Principi, 353 F. 3d.
1369 (Fed. Cir. 2004). Accordingly, the Board will address
the merits of the claims.
Governing Statutes and Regulations
Service connection is granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). This requires a
finding that there is a current disability that has a
relationship with an injury or disease or some other
manifestation of the disability during service. Rabideau v.
Derwinski, 2 Vet. App. 141, 143 (1992) and Cuevas v.
Principi, 3 Vet. App. 542, 548 (1992). However, it need not
be shown that the disability was present or diagnosed during
service but only that there is a nexus between the current
condition and military service, even if first diagnosed
after service, on the basis of all the evidence, including
pertinent service medical records. This can be shown by
establishing that the disability resulted from personal
injury or disease incurred in the line of duty.
38 C.F.R. § 3.303(d); Godfrey v. Derwinski, 2 Vet. App. 352,
356 (1992).
Direct service connection may not be granted without medical
evidence of a current disability, medical or, in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and medical evidence of a
nexus between the claimed in-service disease or injury and
the present disease or injury. See, e.g., Boyer v. West, 210
F.3d 1351, 1353 (Fed. Cir. 2000) ("A veteran seeking
disability benefits must establish . . . the existence of a
disability [and] a connection between the veteran's service
and the disability . . ."). See also Maggitt v. West, 202
F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d
1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App.
546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308
(Fed. Cir. 1998).
38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) provide for
service connection for a combat-related injury on the basis
of lay statements, alone, but do not absolve a veteran from
the requirement of demonstrating current disability and a
nexus to service, as to both of which competent medical
evidence is generally required. See Beausoleil v. Brown, 8
Vet. App. 459, 464 (1996). In other words, §1154(b) and the
implementing regulation, § 3.304(d), do not allow a combat
veteran to establish service connection with lay testimony
alone. Rather, the statute and implementing regulation
merely relax the evidentiary requirements for determining
what happened during service and are used only to provide a
factual basis for a determination that a particular disease
or injury was incurred or aggravated in service, not to link
the service problem etiologically to a current disability.
Gregory v. Brown, 8 Vet. App. 563, 567 (1996).
If a veteran, as in this case, is a former POW and as such
was interned or detained for not less than 30 days, certain
diseases, including atherosclerotic heart disease or
hypertensive vascular disease, shall be service connected if
manifest to a degree of 10 percent or more at any time after
service discharge or release from active military service,
even though there is no record of such disease during
service, provided the rebuttable presumption provisions of 38
C.F.R. § 3.307 are also satisfied. See 38 U.S.C.A. § 1112;
38 C.F.R. § 3.309 (c).
In addition, service connection may also be granted for a
disability that is proximately due to or the result of a
service-connected condition. See 38 C.F.R. § 3.310(a).
This includes situations when a service-connected condition
has chronically aggravated another condition that is not
service- connected, but compensation is only payable for the
degree of additional disability attributable to the
aggravation. See Allen v. Brown, 7 Vet. App. 439 (1995).
When, after considering all information and lay and medical
evidence of record, there is an approximate balance of
positive and negative evidence as to any material issue, VA
shall give the claimant the benefit of the doubt.
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Dela Cruz
v. Principi, 15 Vet. App. 143, 148-49 (2001) ("the VCAA
simply restated what existed in section 5107 regarding the
benefit-of-the-doubt doctrine").
As mentioned above, the veteran was wounded in action in
December 1943, and was held as a POW from January 1944 to
April 1945. He received a combat infantry badge and a Purple
Heart for his meritorious service. He is currently service-
connected for the following disabilities: post-traumatic
stress disorder (PTSD), cold injuries to the right and left
hands, trenchfoot with bilateral peripheral neuropathy of the
lower extremities, residuals of a shell fragment wound to the
left forearm and right groin, hypertension, malaria, and
scars on the anterior aspect of both thighs. He contends
that the shell fragment wound to his groin and thighs caused
his testicle, hernia, and prostate problems.
Service Connection for a Bilateral Eye Disability
The veteran's SMRs are unremarkable for any eye disability
during service. The October 1945 report of a physical
examination prior to discharge from military service
indicates he had no eye abnormalities. An October 2001 VAOPT
record indicates he had nuclear sclerosis greater in the left
eye than the right eye; glaucoma (noted as stable); and was
scheduled for cataract surgery in November 2001. A November
2003 letter from Dr. Kaplan to Dr. Van den Bosch indicates
the veteran had following eye conditions: status post branch
retinal vein occlusion of the left eye with retinal
hemorrhage, status post open angle glaucoma, status post
posterior chamber lens of the left eye, incipient cataract of
the right eye, posterior vitreous detachment (both eyes).
The report of the September 2004 VA examination for the
veteran's eyes indicates he had primary open angle glaucoma
since at least 1992, branch retinal vein occlusion of the
left eye in 1997, and cataracts in each eye becoming visually
significant in 2001. The doctor opined that the veteran's
eye conditions were not incurred during active service, and
were not related to a service-connected disease or injury.
As already alluded to, competent medical evidence is required
to establish a nexus between a current disability and
military service. See Espiritu v Derwinski, 2 Vet. App. 492,
494 (1992); Layno v. Brown, 6 Vet. App. 465 (1994);
Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette v.
Brown, 8 Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet.
App. 91, 93 (1993); and Hasty v. Brown, 13 Vet. App. 230
(1999). As a layman, the veteran, himself, is not qualified
to provide a competent medical opinion etiologically linking
his current eye conditions to his service in the military
that ended many years ago. Id. And unfortunately, there is
no other competent medical evidence on record establishing
this necessary link. In fact, the medical evidence indicates
the opposite - that there is no relationship between his eye
conditions and military service.
Service Connection for a Left Inguinal Hernia,
Left Testicle Disorder, and Prostate Disorder
The veteran's SMRs are negative for any indication of an
inguinal hernia, testicle or prostate problem during his
military service. He contends that these conditions, which
developed years after his discharge from military service,
were caused by his service-connected shell fragment wounds.
Private medical records indicate the veteran was diagnosed
with a left inguinal hernia in November 1976, and he
underwent surgery. In September 1983, he developed hydrocele
(i.e. swelling and the accumulation of fluid) in his left
testicle, and an orchiectomy (i.e. the surgical removal of a
testicle) was performed. It was noted he had multiple
shrapnel wounds without serious sequelae (i.e. residuals)
during World War II. (See medical records from Reading
Hospital).
The reports of October 1997 and September 2004 VA
examinations indicate the veteran had no left testicle, and a
residual scar from the hernia surgery. Otherwise, there were
no residuals from the prior surgeries such as urinary
incontinence or urinary tract infections. It was noted,
however, that he had a small amount of prostate hyperplasia
that was considered benign. Dr. Murthy, the VA urologist who
examined him in September 2004, stated that the veteran's war
wounds had no connection with his subsequent development of
hydrocele and orchiectomy. The doctor also stated that it
was very unlikely that the veteran had any urological
conditions related to his war wounds.
Dr. Maish, who also examined the veteran in September 2004,
stated that the veteran did have a left inguinal hernia at
the time of the examination or any residuals from the hernia
he had in 1976. The doctor was unable to state whether the
left inguinal hernia had its onset during service or was a
result of the veteran's shell fragment wounds.
Because there is no competent medical evidence on record
establishing a link between the veteran's military service or
his service-connected disabilities, and his left inguinal
hernia, left testicle disorder, and prostate disorder, these
claims for service connection must be denied.
Service Connection for a Cardiovascular Disability
The veteran's SMRs are negative for any indication of a
cardiovascular condition during his military service. The
medical evidence indicates he has a history of hypertension
beginning in the late 1980s. In October 2004, the RO granted
service connection for hypertension, but he continued to
appeal claiming that he also has arteriosclerosis. As
mentioned, because he is a former POW, if he develops
atherosclerotic heart disease manifest to a degree of
disability of 10 percent or more at any point, service
connection is presumed. 38 C.F.R § 3.309(c).
The October 1997 report of a VA cardiology examination
indicates the veteran was hypertensive, but there was no
evidence of arteriosclerosis. Dr. Kavolsky's records show
treatment for hypertension and hyperlipidemia, which was
discovered in May 1987 prior to dental surgery. The
September 2004 report of a VA cardiology examination also
notes treatment for hypertension and hyperlipidemia, but no
history of coronary artery disease. The doctor opined that
his hypertension was at least as likely as not related to the
veteran being a POW - and, as mentioned, the RO granted
service connection for this disability.
With regard to hyperlipidemia, hyperlipidemia is "a general
term for elevated concentrations of any or all of the lipids
in the plasma, including hypertriglyceridemia,
hypercholesterolemia, etc." DORLAND'S ILLUSTRATED MEDICAL
DICTIONARY 852 (29th ed. 2000); see STEDMAN'S MEDICAL DICTIONARY
850 (27th ed. 2000) (defining hyperlipidemia as the presence
of an abnormally large amount of lipids in the circulating
blood).
In other words, hyperlipidemia is a laboratory finding and is
not a disability in and of itself for which VA compensation
benefits are payable. See, 61 Fed. Reg. 20,440, 20,445 (May
7, 1996) (Diagnoses of hyperlipidemia, elevated
triglycerides, and elevated cholesterol are actually
laboratory results and are not, in and of themselves,
disabilities. They are, therefore, not appropriate entities
for the rating schedule). The term "disability" as used for
VA purposes refers to impairment of earning capacity. See
Allen v. Brown, 7 Vet. App. 439, 448 (1995).
While hyperlipidemia may be evidence of underlying disability
or may later cause disability, service connection may not be
granted for a laboratory finding. "Congress specifically
limits entitlement for service-connected disease or injury to
cases where such incidents have resulted in a disability. In
the absence of proof of present disability there can be no
valid claim." Brammer, 3 Vet. App. at 225 (citation omitted);
see 38 U.S.C.A. § 1110. Nothing in the medical evidence
reflects that he has a current disability manifested by
hyperlipidemia. So service connection can not be granted for
hyperlipidemia.
With regard to arteriosclerosis or atherosclerosis, the
veteran fortunately has not developed either of these
conditions. Without competent medical evidence confirming
the veteran currently has a cardiovascular disability (other
than hypertension, which has already been established) and
linking it to his military service, he has no valid claim.
Brammer, 3 Vet. App. at 225.
Benefit of the Doubt Doctrine
For these reasons, the claims for service connection for a
bilateral eye disability, left inguinal hernia, left testicle
disorder, prostate disorder, and cardiovascular disability,
must be denied because the preponderance of the evidence is
unfavorable - meaning there is no reasonable doubt to
resolve in the veteran's favor.
See 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519
(1996).
ORDER
The claims for service connection for a bilateral eye
disability, left inguinal hernia, left testicle disorder,
prostate disorder, and cardiovascular disability, are denied.
REMAND
As alluded to previously, in Dingess/Hartman v. Nicholson,
the Court addressed the applicability of the VCAA notice
requirements to situations, such as in this case, where VA
has granted service connection for a disability, but the
veteran disagrees with the effective date assigned.
Dingess/Hartman, 2006 WL 519755, at *8. As to the effective
date element, Dingess/Hartman holds that the claimant must be
notified:
that the effective date of an award of service
connection and any assigned disability rating(s)
will be determined based on when VA receives the
claim, when the evidence that establishes the basis
for a disability rating that reflects that level of
disability was submitted, or on the day after the
veteran's discharge from service if the claim that
is the basis for which service connection is
awarded is submitted within one year after
discharge.
Id, at *12.
Furthermore, VA must consider the claimant's application and
tailor the notice to inform the claimant of the evidence and
information required to substantiate the elements of the
claim reasonably raised by the application's wording. Id. at
*13.
In this particular case, the veteran disagrees with the
effective dates assigned for the grant of service connection
for trenchfoot and cold injuries to the hands. In March
2004, during a telephone conversation, he indicated that he
wanted to file additional claims for service connection for
trenchfoot and numbness in his hands and feet (see VA Form
119). In June 2004, the RO telephoned him again to clarify
these additional issues. He said that he was seeking service
connection for frostbite. In June 2004, the RO sent him a
VCAA notice letter informing him of the evidence needed to
substantiate a claim for service connection for frostbite,
including the evidence already on record, the evidence it was
expected that he would obtain, and the evidence VA would seek
on his behalf. This letter, however, did not inform him of
how an effective date would be assigned should his claims be
granted.
The Board notes that the June 2005 SOC listed the general
regulation that applies to effective dates - 38 C.F.R. §
3.400. So at least some notice was provided to the veteran
as to the general manner in which VA assigns effective dates.
However, he was not provided with notice of the types of
communication that can be considered an informal claim under
38 C.F.R. § 3.155. He also was not notified of the
circumstances in which a report of examination or
hospitalization can constitute a claim for compensation under
38 C.F.R. § 3.157. Since these regulations may apply to the
effective dates assigned to his claims, VA has an obligation
to specially tailor a notice to him that informs him of these
regulations.
Accordingly, these issues are REMANDED to the RO (via the
AMC) for the following development and consideration:
Please send the veteran a corrective VCAA
notice under 38 U.S.C.A. § 5103(a) and 38
C.F.R. § 3.159(b), that includes an
explanation as to the information or
evidence needed to establish disability
ratings and effective dates for the
claims on appeal, as outlined by the
Court in Dingess/Hartman v. Nicholson.
This notice should also discuss 38 C.F.R.
§§ 3.155 and 3.157, which might be
applicable to the effective dates
assigned to these claims.
Then readjudicate the veteran's claims in light of
any additional evidence obtained. If they are not
granted to his satisfaction, prepare an SSOC and
send it to him and his representative. Give them
time to respond before returning the case to the
Board for further appellate consideration.
No action is required of the veteran or his representative
until further notice is received. By this action, the Board
intimates no opinion, legal or factual, as to the ultimate
disposition warranted in this case.
The veteran has the right to submit additional evidence and
argument concerning the claims the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States
Court of Appeals for Veterans Claims for additional
development or other appropriate action must be handled in an
expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2005).
______________________________________________
C. TRUEBA
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs